Legal Theory Blog

Hans Gribnau (Tilburg Law School) & Jane Frecknall-Hughes (University of Nottingham) have posted Thomas Aquinas His Work, Justice, the State and Taxation on SSRN. Here is the abstract:

Thomas Aquinas (1125-1274) is one of the most important scholars of medieval Europe. Using scholastic techniques arising from the rediscovery of ancient philosophy texts, notably those of Aristotle, Aquinas’s writings convey the teachings of Christian theology through an Aristotelian lens. Here, we consider especially his thoughts on morality and happiness, which he regarded as the ultimate aim of human life, in the context of the role of the state, justice and taxation. For Aquinas, human action is basically about free choice. The virtue of prudence (practical wisdom) directs man’s moral behaviour. Prudence ranks first among the virtues because it needs to provide the appropriate prescriptive knowledge. Next, justice is necessary to meet the demand for correct choice of actions for the right end. A ruler is responsible for caring for the community and has the right to make law. Apart from serving the common good and being issued by the legislator within the limits of his authority, the law must be right and just. With regard to taxation, it is the ruler’s responsibility to settle what tax justice requires. Prudence should direct the legislating ruler towards temperance. The obligation to pay tax has to be laid down in legislation. Aquinas emphasizes the necessity of stability and generality of tax laws. His conception of prudence also pertains to citizens as taxpayers. The preservation of the public good requires citizens to have the virtue of justice and to comply with the letter and the spirit of tax law.

Ritwika Sharma (O.P. Jindal Global University) & Mayuri Gupta (Vidhi Centre for Legal Policy; Gujarat National Law University) have posted When Labels Matter: Federalism, Basic Structure Doctrine, and the Indian Supreme Court on SSRN. Here is the abstract:

The Constitution of India is variously described as “federal” or “quasi-federal,” the latter description being a proverbial albatross around the Constitution’s neck. Since the early 1960s, the Indian Supreme Court has repeatedly tested the limits of legislation, especially parliamentary laws and how they sit alongside constitutional provisions concerning Union-state relations. While it might appear to be a harmless label, the Constitution’s characterization as “quasi- federal” has often led the Supreme Court to authorize increased centralization of governmental power. Simultaneously, with the birth of the “basic structure doctrine” in 1973, its subsequent development and the inclusion of federalism in the basic structure, the Supreme Court has been more mindful of which central incursions into states’ power pass muster. This article assesses how the basic structure doctrine has been used to propose a federalism-furthering interpretation of the Constitution. It suggests that certain contemporary federal issues could be resolved by the application of the basic structure doctrine to the interpretation of relevant constitutional provisions. The article distances itself from certain thoughts on the combined use of the basic structure doctrine as well as more recent jurisprudence around Indian federalism which can be deftly used to curb over-centralization and further states’ autonomy.

Greer Donley (University of Pittsburgh – School of Law) & William M. Carter, Jr. (University of Pittsburgh – School of Law) have posted An Originalist Critique of Fetal Personhood (175 U. Pa. L. Rev. (forthcoming 2026)) on SSRN. Here is the abstract:

The current “North Star” in the antiabortion movement is fetal personhood: a declaration by judicial fiat that conception marks the beginning of constitutional personhood—and therefore, constitutional rights—under the Fourteenth Amendment. The implications are potentially enormous, including a de facto national abortion ban, mass criminalization in pregnancy, and the end of IVF as we know it. These policy consequences are well covered in the scholarship, but few have critiqued fetal personhood on its own terms, currently centered on originalism. This Article does exactly that, mining nineteenth-century dictionaries to understand the term’s meaning to the public, lawyers, and drafters of the Reconstruction Amendments.

We conclude that the meaning of “person” at the time of the Fourteenth Amendment’s ratification required birth. We first explore the original public meaning. One common public meaning of “person” was “living human being,” but dictionaries reveal that “life” was understood to begin at birth—or quickening, at the earliest. Moreover, an equally common public meaning of “person” was “individual,” which meant an independent and separate entity. Individuality requires the separation of birth. The legal meaning of “person” was different than the public meaning, but even more clearly excluded fetuses. Nineteenth century legal dictionaries note that personhood was distinct from human life. Rather, “person” meant “rights-holder,” and those sources plainly state that those rights were bestowed after a live birth.

Finally, public meaning originalism requires a consideration of context. And the context of the Fourteenth Amendment was not to define or alter the meaning of “person,” but to remedy the original Constitution’s perversion, whereby slaves who were clearly “persons” in fact were treated as property in law. The ratifying public understood “person” in the Lockean sense of a rational actor with free will and individuality––a definition fetuses could not meet. In sum, the originalist case for fetal personhood involves an acontextual originalism with cherry-picked sources. Fetuses were simply not understood as persons in 1868.

Highly recommended.

John O. McGinnis (Northwestern University – Pritzker School of Law) & Phil Pillari have posted Against Deferential Skidmore (78 Administrative Law Journal ___ (forthcoming 2026)) on SSRN. Here is the abstract:

This Article argues that any version of Skidmore that grants agencies institutional weight for expertise in their interpretation of statutes is incompatible with § 706 of the APA and cannot survive Loper Bright. The Article distinguishes between “educational Skidmore,” which treats agency views as useful information, and “deferential Skidmore,” which gives agencies a doctrinal thumb on the scale for their legal interpretations. Contrary to the emerging scholarly consensus, we show that deferential Skidmore is unlawful. Section 706’s text, structure, and history foreclose a standard of review for legal questions that defers to agency expertise beyond what its persuasiveness warrants, and neither Skidmore nor Hearst is plausibly incorporated as “old soil” importing as matter of past doctrine expertise-based deference into section 706. Deferential Skidmore meets every criterion Loper Bright used to abandon Chevron: it is egregiously erroneous, unworkable, and elicits no substantial reliance. Changed conditions also favor overruling deferential Skidmore: the premises for institutional deference have eroded in a world where the political control of agencies is recognized and where there is wider access to the technical knowledge relevant to interpreting texts. The “respect” due to agency expertise under Loper Bright is consistent with “educational Skidmore.” Agency expertise in statutory interpretation is a source of illumination, not authority.

Highly recommended.

Marc Canellas (Maryland Office of The Public Defender) has posted Do Justices Dream of Cybernetic Beings? The Failure of Constitutional Accident Investigation on SSRN. Here is the abstract:

Constitutional violations increasingly arise from failures in complex systems of humans and machines. Courts, acting as the nation’s constitutional accident investigators, are tasked with identifying the causes of these failures and assigning responsibility. Yet despite the scale of modern disasters, courts often struggle to identify responsibility or provide remedies. This Article argues that the problem is structural: American constitutional law relies on models of causation designed for simple systems and individual actors, while modern governance operates through complex cybernetic systems composed of humans, machines, and organizations.

Leveraging the decades of experience and expertise found in the disciplines of accident causation, system safety, and cognitive systems engineering, this Article introduces a cybernetic system framework for analyzing constitutional violations. Cybernetic systems consist of interacting components, including inputs, machines, human-machine interaction, users, feedback loops, and organizations, whose interactions product system success or failure. These interactions generate two defining characteristics of cybernetic systems: interdependence, in which the actions of each component depend on others, and complexity, in which numerous components jointly determine system behavior in ways that are difficult to predict or isolate.

Using antidiscrimination law as a case study, this Article shows how courts are applying investigative models that cannot account for interdependence and complexity. As a result, many modern rights violations produced by cybernetic systems remain invisible to existing doctrine, leaving important constitutional protections effectively unenforceable.

Very interesting.

Raphaël Girard (University of Exeter – College of Social Sciences and International Studies) has posted Populism and Courts in an Age of Constitutional Impatience: Judges vs the People (https://www.bloomsbury.com/us/populism-and-courts-in-an-age-of-constitutional-impatience-9781509987559/) on SSRN. Here is the abstract:

This book addresses one of the most pressing issues of our time: the rise of populism and its implications, particularly for courts and other legal institutions.

It questions and ultimately challenges the prevailing view in comparative constitutional law that courts can act as bulwarks against authoritarian, self-aggrandising populists in power. In doing so, it offers both a novel theoretical framework and a fresh contextual inquiry.

Theoretically, the book uses the lens of spatiotemporality – the conjunction of space and time – to analyse populism as a constitutional project. It argues that contemporary populism is marked by constitutional impatience: a drive for temporal efficiency and spatial proximity that reshapes and reconfigures law’s institutional and normative order.

Contextually, the book focuses primarily on one key institution of liberal constitutional democracy: the judiciary. It offers a contextual analysis of three case studies: Armenia, Ecuador and the United Kingdom. In doing so, it not only highlights populism’s reach beyond established democracies but also brings fresh insights from understudied jurisdictions at the periphery or in the Global South.

Overall, the book suggests that populism’s relationship with constitutionalism is complex and context-dependent. Instead of yielding uniform outcomes, it produces divergent tensions and impacts, thereby challenging assumptions about both the institutional role of courts and the nature of constitutionalism itself.

Felix Steffek (University of Cambridge – Faculty of Law; European Corporate Governance Institute (ECGI)) has posted The Ethical Foundations of Corporate Insolvency Law: Sketches of a Justice Theory for Corporate Financial Distress on SSRN. Here is the abstract:

This chapter investigates the ethical principles that shape corporate insolvency law. It starts by presenting the foundations of a legal justice theory based on normative individualism and interests. It then explains essential justice concepts such as coherence, consensus and coordination. On this basis, the chapter develops justice principles of corporate insolvency law within the context of a comprehensive justice theory. The first level of justice principles comprises the autonomy principle, the improvement principle, the proportionality principle and the equality principle. These principles can be concretised further into more fine-grained justice principles. For example, the improvement principle can be further differentiated into the efficiency principle and the solidarity principle. Examples are drawn from comparative corporate insolvency law and practice to explain the justice principles and their application.

John Carter (St. Thomas University) has posted Algorethics and Neuro-Symbolic Military AI: Ontologies, “Hellscapes,” Just War, and Silicon Valley on SSRN. Here is the abstract:

Algorethics, as described in the Rome Call for AI Ethics (2020), is an overarching field that includes algorithmic accountability, systemic AI governance, value-sensitive design (VSD), responsible AI (RAI), trustworthy AI, explainable AI (XAI), and similar terms, but which puts these subfields in conversation with broader, more historical ethical and moral traditions. This essay evaluates the ways in which ontology-supported neuro-symbolic artificial intelligence (NeSy) addresses algorethics concerns about explainability and transparency in military applications of AI but does not solve the problem of accountability, which in the case of AI may be greater than similar concerns regarding other private defense contractors. Existing conflicts in Ukraine and Sudan and a potential “hellscape” strategy in the Taiwan Strait are discussed, as are recent U.S. military actions in Venezuela and Iran, and the crossover effects among them based on common suppliers of AI-supported drones; in Sudan and parts of Ukraine, the label “hellscape” is already apt. A parallel is drawn between John Ford, SJ’s condemnation of obliteration bombing in World War II and the drone-swarmed “hellscapes” that current military technology makes possible. The dispute between Anthropic and the U.S. Defense Department over usage restrictions is discussed, as is the role of Palantir and its stated commitment to norms of just war. In addition to Ford, the work of Francisco de Vitoria and Alasdair MacIntyre is also brought to bear on the problem.

Gregory M. Gilchrist (University of Toledo College of Law) has posted Decriminalizing Politics on SSRN. Here is the abstract:

Federal bribery law fails in two ways. First, it fails to meaningfully limit the influence of money on public officials. Second, it fails to comport with basic legality principles and due process.

American politics is awash in money. Campaigns are expensive and candidates spend a good deal of time asking people to fund them. Those who fund campaigns do so for various reasons. First, they agree with and prefer the policy goals of the candidate. Second, they hope the candidate will support governmental action that could benefit them. Third, they wish to establish good will with someone who may soon be in public office. None of this is a secret and all but the most obtuse candidates know this.

At the same time, otherwise lawful campaign contributions can serve as the basis for federal bribery charges. Any bribery prosecution must show that the campaign contribution was given or received as part of a quid pro quo by which the candidate agreed to take an official action in exchange for the contribution.

This rule, which sounds fine in the abstract, works great mischief in the American political system. The line between lawful contributions and illicit bribes suffers from an epistemic problem and an ontological problem: it is often impossible to discern and, in some cases, may be entirely fictitious. Simply put, in a political system where people are allowed and even encouraged to contribute financially to their preferred candidates, there is little basis on which to discern which contributions are democratic participation and which are corrupt; worse, there may be no difference at all.

While some vagueness is a necessary evil in codified criminal laws, the vagueness in federal bribery law is pernicious. It introduces injustice because it will tend to inure to the detriment of smaller, less sophisticated, or less well-staffed campaigns. Worse, it threatens to chill democratic participation.

Whereas courts find solace in the face of potential vagueness and overbreadth in the sound use of prosecutorial discretion, that provides little comfort here. Since the subject of the law is politics, discretionary decisions introduce the specter that the executive could use the criminal law to weaken political opponents. There’s as much reason to worry about the weaponization of this rule as to hope for wise discretionary calls.

This Article proposes a simple fix. Campaign contributions should never be a basis for federal bribery charges. Federal bribery charges could still be brought in cases involving non-campaign payments and issues of corruption involving campaign contributions would be governed by the extensive and evolving laws that already exist.

Joe Buffington (Albany Law School) has posted Born This Way? How the Linguistic Structure of the 14th Amendment Undermines “Birthright Citizenship” on SSRN. Here is the abstract:

The first sentence of the 14th Amendment to the U.S. Constitution has long been interpreted to confer American citizenship on any person born in the United States, unless the person was a member of a limited set of individuals deemed not subject to its jurisdiction – such as the children of visiting diplomats. President Trump, however, contends that the provision denies citizenship to any person whose mother was illegally or merely temporarily present in the United States when the person was born (unless the person’s father was a citizen or permanent resident), a position the Supreme Court has yet to adopt. Discussions of the provision’s meaning routinely focus on the semantics of the “subject to” conjunct, reducing the interpretive issue to the single query: Who’s subject to U.S. jurisdiction and thereby eligible (via birth or naturalization) for American citizenship? This seems sensible, but it’s ultimately insufficient, because it neglects the conjunct’s relation to the rest of the sentence; in other words, simply knowing what it means to be “subject to the jurisdiction thereof” isn’t the end of the disambiguation. In this essay, I apply modern linguistic insights to the text of the 14th Amendment and show that even if we reasonably interpret the Amendment as defining the exclusive paths to U.S. citizenship, we must accept that, under the most plausible reading of the Amendment’s first sentence, no path requires a person to be subject to U.S. jurisdiction at the time of their birth; thus, to the extent that linguistic and legal plausibility coincide, whether the Constitution confers “birthright citizenship” isn’t an issue.

Surprisingly, something new to think about.